Judge Curtis A. Kin, Case Number: 20STCP00929, Date: 2024-10-08 Tentative Ruling

Petitioner City of Oxnard moves for an award of attorney fees in the amount of $550,860.90. Respondent Fox Canyon Groundwater Management Agency (“Agency”) moves to tax the $96,964.40 in costs sought by petitioner in its Memorandum of Costs.

On March 5, 2020, petitioner City of Oxnard (“City”) filed the operative Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief.

On June 9, 2023, the Court granted the petition based on its findings that certain provisions of the Agency’s Ordinance to Establish an Allocation System for the Oxnard and Pleasant Valley Groundwater Basins (“Ordinance”) violated the Fox Canyon Groundwater Management Agency Act (“FCGMAA”) and the public policy set forth in Water Code section 106. The Court, however, rejected petitioner’s California Environmental Quality Act (“CEQA”) challenge to the Ordinance, finding that the Ordinance was exempt from CEQA.

On August 8, 2023, the Court entered judgment in favor of petitioner. On August 31, 2023, the Court issued a writ of mandate directing the Agency to (1) rescind or revise the provisions of the Ordinance that violate section 702 of the FCGMAA and (2) set aside section 10.2 of the Ordinance. In response to the writ of mandate, the Agency rescinded section 10.2 of the Ordinance. (4/23/24 Newmark Decl. in Support of Motion to Compel Compliance with Writ of Mandate at Ex. 3 [“Amended Ordinance”], p. 3.) The Agency also revised article 6 of the Ordinance.

Thereafter, the City moved to compel the Agency’s compliance with the writ of mandate on the grounds that (1) the take requirement of the newly revised section 6.3.1 of the Ordinance and (2) the 50% limit on extraction allocation reductions for the Santa Clara River Water Flex Allocation failed to comply with the writ. On September 30, 2024, the Court granted in part the City’s motion to compel compliance with the writ. The Court agreed with the City that the 50% allocation reduction did not comply writ but disagreed that the take requirement violated the writ.

Petitioner seeks an award of attorney fees pursuant to Code of Civil Procedure § 1021.5. “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest….” (CCP § 1021.5.) “[E]ligibility for section 1021.5 attorney fees is established when ‘(1) plaintiffs’ action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons” and (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate.”’” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)

The City’s request for judicial notice is GRANTED as to Exhibit A, pursuant to Evidence Code § 452(h).) The City’s request is otherwise DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

The Agency’s request for judicial notice is DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez, 50 Cal.App.5th at 1075.)

A party “may be considered successful if they succeed on any significant issue in the litigation that achieves some of the benefit they sought in bringing suit.” (Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376, 382.) In determining whether the issue upon which a party prevailed is significant, “the court must critically analyze the surrounding circumstances of the litigation and pragmatically assess the gains achieved by the action.” (Ibid.)

Here, petitioner sought the Ordinance’s compliance with section 702 of the FCGMAA. (Pet. Prayer for Relief at ¶ 2(b).) Petitioner succeeded in obtaining a writ directing respondent to rescind or revise section 6 Ordinance to comply with section 702 of the Fox Agency Groundwater Management Agency Act (“FCGMAA”).[1] (8/31/24 Writ of Mandate ¶ 1(a).) Petitioner also alleged that section 10.2 of the Ordinance violated Water Code § 106.[2] (Pet. at ¶¶ 57, 59.) The Court agreed and ordered rescission of section 10.2. (8/31/24 Writ of Mandate ¶ 1(b).)

The Agency argues that petitioner sought to vacate the entire Ordinance, which the Court did not end up ordering. (See Pet. Prayer for Relief at ¶ 2(a).) The Agency also argues that the Court allowed it to exercise its lawful discretion in determining how to comply with the writ. (8/31/24 Writ of Mandate ¶ 2.) Regardless, the City objected to the Ordinance because the Ordinance did not provide any adjustment to the City’s groundwater extraction allocation based on its use of supplemental water, even though certain agricultural operators received an adjustment. (Pet. ¶¶ 45, 46, 49, 50, 53.) The City also objected to the Ordinance because section 10.2 identified agricultural operators for preferential treatment, which directly contravened the stated policy of Water Code § 106. (Pet. ¶¶ 57-59.)

The Court agreed with the basis for the City’s objections to the Ordinance. Even though the Ordinance was not vacated, the City achieved its significant objectives of eliminating restrictive regulations that did not bind other operators (as required under section 702 of the FCGMAA) and vindicating the primacy of water for domestic use (as set forth in Water Code § 106). Because petitioner prevailed such significant issues in the litigation, the Court finds that petitioner is the successful party under section 1021.5.

“In assessing whether an action has enforced an important right, courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. As to the benefit, it may be conceptual or doctrinal and need not be actual and concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient ... [However,] [t]he benefit must inure primarily to the public. Thus, the statute directs the judiciary to exercise judgment in attempting to ascertain the ‘strength’ or ‘societal importance’ of the right involved.” (Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 829, quoting Choi v. Orange County Great Park Corp. (2009) 175 Cal.App.4th 524, 531, internal quotations and citations omitted.)

“Where…the nonpecuniary benefit to the public is the proper enforcement of the law, the successful party must show that the law being enforced furthers a significant policy.” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1158.) Here, the City succeeded in obtaining a ruling that it intended to ensure the affordable and reliable supply of water for its 200,000 residents. (City RJN Ex. 1.) Under state policy, “every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes.” (Wat. Code § 106.3.) Further, contrary to the Agency’s contention, the writ of mandate does not solely benefit the residents of the City. Because the Adjusted Allocation in the Amended Ordinance is available to all operators, the writ also ensured that other municipal operators to whom supplemental water is available would not be subject to more restrictive regulations than those imposed on other operators. (See Amended Ordinance § 6.3; McCormick v. Public Employees’ Retirement System (2023) 90 Cal.App.5th 996, 1008 [“when an opinion illuminates or emphasizes the contours of existing law and requires an agency to follow it,” purpose of section 1021.5 to ensure public officials enforce the law is vindicated].)

For the foregoing reasons, by obtaining a writ of mandate, the City enforced an important right affecting the public interest by ensuring that municipal operators receive the same benefits afforded to agricultural operators, a policy evinced by FCGMAA § 702 and Water Code § 106.

“Whether a successful party’s lawsuit confers a ‘significant benefit’ on the general public or a large class of persons is a function of (1) ‘the significance of the benefit,’ and (2) ‘the size of the class receiving [the] benefit.’ [Citation.] In evaluating these factors, courts are to ‘realistic[ally] assess[ ]’ the lawsuit’s ‘gains’ ‘in light of all the pertinent circumstances.’ [Citation.]” (La Mirada, 22 Cal.App.5th at 1158.) “A benefit need not be monetary to be significant. (§ 1021.5 [defining “a significant benefit” as either “pecuniary or nonpecuinary”].) Where, as here, the nonpecuniary benefit to the public is the proper enforcement of the law, the successful party must show that the law being enforced furthers a significant policy. [Citation.]” (La Mirada, 22 Cal.App.5th at 1158.)

“[T]he significant benefit requirement of section 1021.5 requires more than a mere statutory violation.” (Burgess v. Coronado Unified School District (2020) 59 Cal.App.5th 1, 9.) However, a significant benefit can be found “simply from the effectuation of a fundamental constitutional or statutory policy” “from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-40.)

For the reasons stated above with respect to enforcement of an important right, the City demonstrates that a significant benefit was conferred on the general public. (La Mirada, 22 Cal.App.5th at 1158 [finding when proper enforcement of law is the public benefit, “the significant benefit and important right requirements of section 1021.5 to some extent dovetail”].)

“[T]he necessity and financial burden requirement really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.” (Whitley, 50 Cal.4th at 1214.) This financial burden criterion applies to public entities such as the City in that “fee awards to public entities are limited to public entities that pursue public interest litigation at a cost to themselves that is out of proportion to any personal interest they might have in the outcome of the matter.” (Children & Families Com. of Fresno County v. Brown (2014) 228 Cal.App.4th 45, 59.) “This inquiry requires consideration of only the pecuniary interests of the public entity and its constituents, and whether the burden of litigation transcends those interests.” (Ibid.)

Here, the City’s financial burden in pursuing writ relief warrants a fee award, as “its litigation costs transcend its personal interest.” (See Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 113.) To begin with, the City did not seek or obtain any financial relief from the judgment. Furthermore, any financial benefit to the City was speculative. (See Boatworks, LLC v. City of Alameda (2019) 35 Cal.App.5th 290, 310, quoting People v. Investco Management & Development LLC (2018) 22 Cal.App.5th 443, 470 [“Where personal benefits are a step removed from the results of the litigation, the potential financial benefit is indirect and speculative,” allowing trial court to conclude that financial burden requirement under section 1021.5 satisfied].) Indeed, after issuance of the writ of mandate, the Agency amended the Ordinance to impose a take requirement (Amended Ordinance §§ 6.3, 6.3.1) that the City argued in its Motion to Compel Compliance would financially penalize the City.

What is clear is that the City sought and obtained a ruling from this Court that the Agency could not treat operators using Calleguas surface water (including the City) more restrictively than operators using surface water from other sources. The City also sought and obtained a ruling from this Court that the Agency could not provide preferential treatment to agricultural operators in the form of minimum groundwater allocations when it did not provide similar protections to municipal operators (including the City). The City advanced the interests of Calleguas and municipal operators at a cost that transcended its own personal financial interest. Even if it is true the City had some personal interest in seeking to minimize its operating costs through the litigation, “the purpose of section 1021.5 is not to compensate with attorney fees only those litigants who have altruistic or lofty motives, but rather all litigants and attorneys who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms.” (Whitley, 50 Cal.4th at 1211.)

Based on the foregoing, the Court finds that the necessity and financial burden of private enforcement by the City warrants a fee award under CCP § 1021.5.

The City moves for $543,301.40 in fees.[3] The amount is based on the lodestar and does not include a multiplier.

The City claims attorney hourly rates ranging from $340 to $545 and paralegal hourly rates from $190 to $265. (Newmark Decl. ¶ 10.) The asserted hourly rates are reasonable. The Agency argues that the City provided no background information about the attorneys other than principal attorney Gregory Newmark who worked on the case. However, the rates do not appear to be unreasonable on their face. (Newmark Decl. ¶ 9 & Ex. B [Laffey Matrix].)

The Agency objects to the City’s claim for $99,773.50 in paralegal time on the ground that the City also claimed $79,287 in paralegal time in its Memorandum of Costs (Ewens Decl. ¶¶ 11, 16 & Exs. 8, 13.) The City is entitled to seek fees for paralegal time under section 1021.5. (Guinn v. Dotson (1994) 23 Cal.App.4th 262, 269.) To the extent that the City separately seeks paralegal fees in the Memorandum of Costs, the City confirms that it does not seek to recover paralegal fees twice (Reply at 12:11-12), and the Court will tax the City’s costs accordingly below. The Agency does not otherwise explain how the claimed paralegal fees are excessive. (Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 848, quoting Premier Medical Management. Systems, Inc. v. California Insurance Guarantee Association (2008) 163 Cal.App.4th 550, 564 [“[G]eneral arguments that fees claimed are excessive, duplicative, or unrelated do not suffice”].) The City may recover its claimed paralegal fees.

The Agency objects to the City’s request for $18,534 in fees for an unsuccessful request for judicial notice. (6/9/23 Ruling at 4; Ewens Decl. ¶ 6 & Ex 3.) “Courts have discretion to compensate a partially successful plaintiff for time spent on unsuccessful legal theories, provided such time was reasonably incurred.” (Environmental Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 240.) While the Court has discretion to allow the City to recover fees for unsuccessful theories, the Court declines to do so in this case. The City’s request for judicial notice was plainly unreasonable under the holding in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559. (See 6/9/23 Ruling at 4.) The City’s fee request is reduced by $18,534.

The Agency objects to the City’s request for $8,422 in fees for Public Records Act (“PRA”) requests that the City sent on April 6, 2020, and March 9, 2023. (Ewens Decl. ¶¶ 8, 15 & Exs. 5, 12.) The Agency contends that the April 6, 2020 request included documents that would form part of the administrative record. As the City elected to prepare the administrative record (Election to Prepare Administrative Record filed on 3/5/20), the April 2020 request appears to be reasonable. With respect to the March 2023 request, this request included requests for injection/storage programs and facilities, which was not the subject of the underlying litigation. (Ewens Decl. ¶ 15.) Such fees are accordingly unreasonably incurred. The fee request is reduced by $972. (Ewens Decl. ¶ 8 & Ex. 5 [fees incurred on 3/9/23, 3/30/23, 5/11/23, and 4/12/23].)

The Agency objects to the City’s request for $102,780 for settlement-related work. (Ewens Decl. ¶ 9 & Ex. 6.) Courts can consider a petitioner’s attempt to settle the dispute in determining whether private enforcement was necessary to justify an award of fees. The City filed eleven stipulations to stay the action pending settlement negotiations. (See Eleventh Stipulation filed 10/10/22.) While private enforcement was ultimately necessary, the City reasonably incurred fees in the attempt to settle the dispute. The City may recover fees for settlement-related work.

The Agency objects to fees incurred after entry of judgment. The Court finds that 67 hours of work performed for the post-judgment motion for attorney fees, amounting to $28,765, is reasonable. (Ewens Decl. ¶ 13 & Ex. 10A.) With respect to the other post-judgment fees that the City seeks, including 51.4 hours ($27,155) for work relating to the Amended Ordinance, 12.4 hours ($6,758) in travel time by counsel for meetings with Agency staff, and 2.5 hours ($1,239) for time related to meetings with Port Hueneme Water Agency and other M&I parties for issues unrelated to the litigation (Ewens Decl. ¶ 13 & Ex. 10), the total $35,152 in fees must be reduced to the extent that the City was unsuccessful in its Motion to Compel Compliance with Writ. Because the compliance motion concerned two discrete elements (the take requirement and the 50% limit on extraction allocation reductions), and because the City was successful only with respect to the 50% allocation reduction limit, the Court reduces $35,152 by half, leading to a reduction of $17,576.

The Agency objects to the City’s request for $14,400 for pre-judgment evaluation of attorney fees. (Ewens Decl. ¶ 12 & Ex. 9.) As stated above, the City claims $28,765 for 67 hours of work on the fee motion post-judgment. That amount adequately compensates the City for the fee motion. The fees are reduced in the amount of $14,400.

The Agency objects to the City’s request for $14,529.50 in fees for researching the assigned judge and observing court proceedings, preparing the dismissal of a cause of action, and work unrelated to the current litigation. (Ewens Decl. ¶ 10 & Ex. 7.) In reviewing the billing entries highlighted by the Agency, the work appears to be unreasonably related to the City’s achievement of success in the instant litigation. The Court notes that the City did not attempt to defend the billing entries highlighted by the Agency in the reply. Accordingly, the fees are reduced by $14,529.50.

The Agency does not object to any other fees. The fees sought by the City and not objected to by the Agency are reasonable. Based on the foregoing, the Court finds that petitioner is entitled to the lodestar amount of $477,289.90 ($543,301.40 total claimed - $18,534 request for judicial notice - $972 March 2023 PRA request - $17,576 post-judgment fees - $14,400 pre-judgment evaluation of fees - $14,529.50 miscellaneous fees = $477,289.90).

On April 23, 2024, the City filed a Memorandum of Costs seeking $96,964.60 in costs. The Agency objects to $538 for court reporter transcription fees, $1,944 for transcription of post-judgment Board of Director meetings, and $78,739.50 for paralegal fees related to preparation of the administrative record.

For the reasons stated above with respect to whether the City was a successful party, the Court finds that the City is a prevailing party under CCP § 1032(a)(4). Even though the City did not prevail on the CEQA cause of action and dismissed its fourth cause of action for violation of the Sustainable Groundwater Management Act, the City achieved its primary litigation objective of ensuring that the Ordinance did not provide agricultural operators with preferential treatment to the prejudice of municipal operators.

With respect to the paralegal fees, the City concedes that it also sought paralegal fees in its Motion for Attorney Fees and that is not seeking paralegal fees twice. (Opp. at 17:4-16.) Accordingly, the costs are taxed in the amount of $78,739.50.

The Agency seeks to tax $538 for court transcription fees, but the basis for so doing is not clear. The City claimed $1,868 in court reporter fees in item 12 of the verified Memorandum of Costs. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1112 [verified memorandum of costs is prima facie evidence that costs were necessarily incurred].) Court reporter fees may be recovered as costs. (CCP § 1033.5.) A claim for $538 in costs does not otherwise appear in the memorandum. In the motion, the Agency does not explain where it obtained the $538 amount. The burden is on the party challenging the cost to demonstrate that the cost is unreasonable. (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113.) “[I]f the items [appearing in a cost bill] are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) Because the Agency does not explain where it obtained the $538 amount, the burden never shifted to the City to justify the cost. In Reply, the Agency points to an invoice attached to Gregory Newmark’s declaration in support of the motion for attorney fees. (Reply at 10:6-19.) The motion to tax costs was filed on June 14, 2024, which was after Newmark’s declaration had been filed on April 23, 2024. Accordingly, the Agency could have referenced the invoice in its motion to tax costs. Arguments withheld until reply are forfeited. (Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 654.) The Court declines to tax the $538 in costs as requested by the Agency.

With respect to the $1,944 for post-judgment transcription fees, only prejudgment costs are recoverable. Notably, Rule of Court 3.1700(a)(1) requires a party claiming costs to “serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal.” (See also CCP § 1034(a) [allowable prejudgment costs claimed in accordance with Rules of Court adopted by Judicial Council].) This requirement clearly suggests that recoverable costs as set forth in the Memorandum of Costs cannot include post-judgement costs. The costs are taxed in the amount of $1,944.00.

For the foregoing reasons, the motion is GRANTED IN PART. Petitioner City of Oxnard’s claim for $96,964.60 in costs are taxed in the amount of $80,683.50 ($78,739.50 paralegal fees + $1,944.00 post-judgment transcripts).

The motion for attorney fees is GRANTED IN PART. Using the appropriate lodestar approach, and based on the foregoing findings and in view of the totality of the circumstances, the total and reasonable amount of attorney fees incurred for the work performed in connection with the writ petition is $477,289.90. Such fees are awarded to petitioner City of Oxnard and against respondent Fox Canyon Groundwater Management Agency.

The motion to tax costs is GRANTED IN PART. Petitioner City of Oxnard’s claim for $96,964.60 in costs are taxed in the amount of $80,683.50 ($78,739.50 paralegal fees + $1,944.00 post-judgment transcripts). The City may recover $16,281.10 in costs.

[1] Under section 702 of the FCGMAA, “[t]he availability of supplemental water to any operator shall not subject that operator to regulations more restrictive than those imposed on other operators.” (Wat. Code App. § 121-702.)

[2] Water Code § 106 states: “It is hereby declared to be the established policy of this State that the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation.”

[3] The City moved for $550,860.90 in fees. (Newmark Decl. ¶ 10.) In Reply, the City withdrew $2,685.50 for CEQA-related fees and $4,874.00 for work done on a separate case potentially subject to coordination. Accordingly, in determining whether the City’s fee request should be reduced, the Court starts from $543,301.40 ($550,860.90 - $2,685 - $4,874).